Woman convicted of embezzlement to make restitution, serve jail time

Pago Pago, AMERICAN SAMOA — The former Native American Samoa Advisory Council (NASAC) employee convicted of misappropriating $36,000 from her former employee is ordered by the Trial Division of the High Court of American Samoa to serve a period of detention of 28 month at the Territorial Correctional Facility (TCF), as a condition of her 7-year probation.

Dorothy Elia, who was convicted of embezzlement, a class C felony appeared in court last Friday for sentencing. She was represented by Public Defender Michael White, while prosecuting the case was Assistant Attorney General Laura Garvey.

Elia’s sentencing was continued from two weeks ago, after the court gave the defense time to address the issue of restitution.

When Elia’s case was called in court last Friday, Kruse asked White to explain to the court whether they have a plan on how to pay restitution, which concerns the court.

White informed the court that they have spoken with his client’s family including her mother and husband, and they are agreed to make partial payments to the court for the amount of restitution.

Kruse broke in and told White, “I want an indication of something realistic. I don't want to hear a ‘fagogo’ anymore.”

White responded saying that according to his client’s mother, their family is willing to pay whatever amount the court ordered Elia to pay. However, they will not make a one-time full payment, but they will make monthly payments until restitution is completed.

Elia’s mother was also present in court.

Kruse turned to the government’s attorney and told her that they forgot to mention in their plea deal with the defendant the amount of restitution. He also stated that because the government failed to mention the amount of restitution, the court is now in the dark about how to determine what restitution should be.

According to Kruse, the court has the amount of restitution of $65,000 on their record, which is the amount that a witness told Probation. However, the court also has the amount of $36,000, which is the amount the defendant told the court she took from her employer for her own personal use.

The government attorney told the court that according to their record, the right amount of restitution is $65,000, which is the amount the government received from the employer. White argued that the right amount of restitution is $36,000, the same amount his client admitted in court she took.

Kruse acknowledge the $24,000 the defendant and her family have already paid back to the employer. According to Kruse, this money was from the defendant’s family plantation.

After hearing from both sides, a recess was called.

When court reconvened, Kruse recapped both sides about facts of the case. He also stated that when it comes to embezzlement, whether it is $1 or $36,000, a crime is committed when someone misappropriates any amount for his or her personal use.

“For this case, the defendant misappropriated the amount of $36,000, the same amount she admitted in court she took for her own personal use,” Kruse said.

“The government did not bother to give to the court the right figure on what was taken, so the court is now relying on the defendant’s figure that was given to the court, which is $36,000 as the amount of restitution in this case.”

According to Kruse, the defendant was convicted of embezzlement, a class C felony, punishable by up to 7 years imprisonment and a fine of up to more than $5,000 or two times the amount gained from the commission of the crime, but not more than $20,000.

The court sentenced Elia to 7 years imprisonment and a fine of $2,000. Execution of prison term is suspended and the defendant is placed on probation for 7 years with the following conditions:

The defendant is to serve a period of detention of 28 months at the TCF without any release whatsoever. However, the 28 months of detention shall be executed as follows — defendant shall forthwith serve the first 6 months at TCF. She will be credited for time she already served while awaiting her sentencing.

At the expiration of her first 6 months of detention, the defendant shall be released for the period of 90-days. During that time, the defendant is to seek and secure gainful employment in order for her to pay her restitution.

According to Kruse, the court will allow the defendant to seek employment anywhere including her family’s plantation. He also said that according to Probation, the defendant and her husband have a huge family plantation, and the court will allow her to work at their family plantation, in order for her to pay restitution.

The court ordered the defendant to pay the balance of the $36,000, which is $12,000.

On the issue of the $2,000 fine, the court ordered that the $2,000 cash bond posted by the defendant as part of her surety bond would cover her fine with the court.

Kruse was assisted on the bench by Chief Associate Judge Mamea Sala Jr and Associate Judge Su’apaia J. Pereira.

BACKGROUND

Elia, 37, was initially charged with embezzlement, stealing, criminal fraud, and forgery. But in a plea agreement with the government, which was accepted by the High Court last month, Elia pled guilty to embezzlement, a class C felony.

Elia admits that between January and October 2016, while employed by NASAC, she had access to the organization’s ANZ bank account and funds, and she ordered unauthorized checks. She also admits that she diverted funds from her employer so they were paid directly to her.